Wednesday, January 21, 2015

Conflict of Interest

Conflict of interest remains a challenging area for judicial officers.

The recent Newfoundland and Labrador decision in Cabana v. Newfoundland and Labrador,
2014 NLCA 34 suggests that disqualifying conflict may not be present in matters where
Ontario judicial officers have customarily found it.

As a general rule Ontario judicial officers decline to hear contested matters where one of the
parties is represented by someone who is a member of the same law firm as the judicial
officer's spouse. So a judge will not hear her husband's associate argue a matter.
The customary refusal is based in part on the view that there is a potential (albeit slight)
financial benefit to the judge or justice in ruling in favour of a spouse's colleague. More
generally some would see it as unseemly for a judicial officer's spouse's associate to appear
before the judicial officer.

The Newfoundland and Labrador Court of Appeal disagreed with this traditional position. The
Court was unconcerned about the whether and attendance was seemly. Further the Court
noted that disqualification for financial gain is not automatic in Canada. In the case of a
judicial officer's spouse appearing the court said the financial benefit was too remote to
matter:

"The question is whether the possible financial gain satisfies the
reasonable apprehension of bias test. ...

The fact that the judge’s husband earns money as a partner in the law
firm and that a portion of that money comes from litigation undertaken
by the firm cannot form the basis for a finding of reasonable
apprehension of bias by the judge in this case. "